Bekker v. Minister of National Revenue, (2004) 323 N.R. 195 (FCA)

• Judge: Stone, Létourneau and Evans, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: April 27, 2004
• Jurisdiction: Canada (Federal)
• Citations: (2004), 323 N.R. 195 (FCA);2004 FCA 186

Bekker v. MNR (2004), 323 N.R. 195 (FCA)

MLB headnote and full text

Temp. Cite: [2004] N.R. TBEd. MY.036

Ken Bekker (applicant) v. Her Majesty the Queen (respondent)

(A-486-02; 2004 FCA 186)

Indexed As: Bekker v. Minister of National Revenue

Federal Court of Appeal

Stone, Létourneau and Evans, JJ.A.

May 7, 2004.

Summary:

The Minister of National Revenue refused a medical expense credit claimed by Bekker pursuant to s. 118.2(2)(n) of the Income Tax Act. Bekker appealed.

The Tax Court of Canada dismissed the appeal and affirmed the Minister's assess­ments. Bekker appealed.

The Federal Court of Appeal dismissed the appeal.

Administrative Law - Topic 3345.2

Judicial review - General - Practice - Issues not raised before tribunal - [See Civil Rights - Topic 8588 ].

Civil Rights - Topic 8588

Canadian Charter of Rights and Freedoms - Practice - Notice to Attorney General - At issue was the deductibility of expenses incurred by Bekker for the acquisition of preparations or substances prescribed to his spouse by a family physician and an envi­ronmental medicine specialist - The Minis­ter of National Revenue had refused Bek­ker's claim for the medical expense credit because the items bought were not "re­cord­ed by a pharma­cist" as required by s. 118.2(2)(n) of the Income Tax Act - The Tax Court con­firmed the Minister's assess­ments - Bekker applied for judicial review, arguing that s. 118.2(2)(n) violated s. 15 of the Charter - The Federal Court of Appeal held that it could not entertain the issue where no notice of a constitutional ques­tion had been given pursuant to s. 57 of the Federal Courts Act and the issue had not been raised before the Tax Court - The court denied Bekker's request for an ad­journ­ment to serve notice and for leave to argue the issue - Judicial review proceed­ings were not a trial de novo where the de­ter­mination of new issues could be made on the basis of freshly adduced evidence - See paragraphs 7 to 16.

Income Tax - Topic 2546

Deductions in computing income - Medical expenses - Medications - At issue was the deductibility of expenses incurred by Bek­ker for the acquisition of preparations or substances (i.e. supplements and organic foods) prescribed to his spouse by a family physician and an environmental medicine specialist - The Minister of National Rev­enue had refused Bek­ker's claim for the medical expense credit because the items bought were not "recorded by a pharma­cist" as required by s. 118.2(2)(n) of the Income Tax Act - The Tax Court con­firmed the Minister's assess­ments - Bekker applied for judicial review, arguing that the Tax Court Judge erred in his interpretation of the impugned words and that he should have given a liberal interpretation to s. 118.2(2)(n) - The Fed­eral Court of Appeal rejected the argument - The court had previously ruled in Ray v. M.N.R. that the statutory requirement had to be met before expenses qualified as "medical expenses" for the purpose of the tax credit under s. 118.2(2)(n) - See para­graph 6.

Cases Noticed:

Ray v. Minister of National Revenue (2004), 315 N.R. 394; 2004 FCA 1, folld. [para. 6].

Gitxsan Treaty Society v. Hospital Employees Union et al. (1999), 238 N.R. 73 (F.C.A.), refd to. [para. 8].

Giagnocavo v. Minister of National Rev­enue (1995), 189 N.R. 225; 95 D.T.C. 5618 (F.C.A.), refd to. [para. 8].

Minister of National Revenue v. Fisher (1996), 197 N.R. 60; 96 D.T.C. 6291 (F.C.A.), refd to. [para. 8].

Reference Re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3; 217 N.R. 1; 206 A.R. 1; 156 W.A.C. 1; 121 Man.R.(2d) 1; 158 W.A.C. 1; 156 Nfld. & P.E.I.R. 1; 483 A.P.R. 1; 150 D.L.R.(4th) 577, refd to. [para. 8].

Thorson v. Canada (Attorney General), [1975] 1 S.C.R. 138; 1 N.R. 225, refd to. [para. 9].

Finlay v. Canada, [1986] 2 S.C.R. 607; 71 N.R. 338, refd to. [para. 9].

Miron and Valliere v. Trudel et al., [1995] 2 S.C.R. 418; 181 N.R. 253; 81 O.A.C. 253, refd to. [para. 9].

Eaton v. Board of Education of Brant County, [1997] 1 S.C.R. 241; 207 N.R. 171; 97 O.A.C. 161, refd to. [para. 9].

Gitxsan Treaty Society v. Hospital Em­ployees' Union et al., [2000] 1 F.C. 135; 249 N.R. 37 (F.C.A.), refd to. [para. 11].

Offshore Logistics Inc. v. International Longshoremen's Association, Local 269 (2000), 257 N.R. 338 (F.C.A.), refd to. [para. 11].

MacKay et al. v. Manitoba, [1989] 2 S.C.R. 357; 99 N.R. 116; 61 Man.R.(2d) 270; 61 D.L.R.(4th) 385; 43 C.R.R. 1; [1989] 6 W.W.R. 351, refd to. [para. 12].

Gosselin v. Quebec (Procureur général), [2002] 4 S.C.R. 429; 298 N.R. 1, refd to. [para. 13].

Front commun des personnes assistées sociales du Québec v. Conseil de la radiodiffusion et des télécommunications canadiennes et al. (2003), 318 N.R. 229; 2003 FCA 394, refd to. [para. 13].

Canada (Attorney General) v. Lesiuk, [2003] 2 F.C. 697; 299 N.R. 307 (F.C.A.), refd to. [para. 13].

Ardoch Algonquin First Nation and Allies et al. v. Ontario et al., [2000] 1 S.C.R. 950; 255 N.R. 1; 134 O.A.C. 201, refd to. [para. 13].

Lovelace v. Ontario - see Ardoch Algon­quin First Nation and Allies et al. v. Ontario et al.

Granovsky v. Minister of Employment and Immigration, [2000] 1 S.C.R. 703; 253 N.R. 329, refd to. [para. 13].

Falkiner et al. v. Director of Income Main­tenance (Ont.) et al. (2002), 159 O.A.C. 135; 59 O.R.(3d) 481 (C.A.), refd to. [para. 13].

Statutes Noticed:

Income Tax Act, R.S.C. 1985 (5th Supp.), c. 1, sect. 118.2(2)(n) [para. 1].

Counsel:

David Green and Martha Mann, for the applicant;

Cecil Woon and Peter Leslie, for the re­spondent.

Solicitors of Record:

Goldberg Thompson, Halifax, Nova Scotia, for the applicant;

Morris Rosenberg, Deputy Attorney Gen­eral of Canada, Halifax, Nova Scotia, for the respondent.

This application was heard on April 27, 2004, at Halifax, Nova Scotia, before Stone, Létourneau and Evans, JJ.A., of the Federal Court of Appeal. The following judgment of the Court of Appeal was delivered by Lé­tourneau, J.A., on May 7, 2004.